Category: Articles
Article
Degrees of Deference: Applying vs. Adopting Another Sovereign’s Law
Kevin M. Clermont, Ziff Professor of Law, Cornell University
Familiar to all Federal Courts enthusiasts is the Erie distinction between federal actors’ obligatory application of state law and their voluntary adoption of state law as federal law. This Article’s thesis is that this significant distinction holds in all other situations where a sovereign employs another’s law: not only in the analogous reverse-Erie resolution of…
Aug 2020
Article
Lawyers’ Abuse of Technology
Cheryl B. Preston, Edwin M. Thomas Professor of Law, Emerita, J. Reuben Clark Law School, Brigham Young University
The Article is a thorough analysis of how the current scheme for regulating lawyers has failed to adapt to technology and why that failure is disastrous. It discusses (1) why technology, electronic communications, and social media require specialized attention in lawyer regulation, (2) what mechanisms can be harnessed to meet this need, and (3) the…
Jul 2020
Article
Divide & Concur: Separate Opinions & Legal Change
Thomas B. Bennett, Associate, Kellogg, Hansen, Todd, Figel & Frederick, P.L.L.C.
Barry Friedman, Jacob D. Fuchsberg Professor of Law, New York University School of Law
Andrew D. Martin, Chancellor, Washington University in St. Louis, School of Law
Susan Navarro Smelcer, Assistant Professor of Law, Georgia State Law
To the extent concurring opinions elicit commentary at all, it is largely contempt. They are condemned for muddying the clarity of the law, fracturing the court, and diminishing the authoritative voice of the majority. But what if this neglect, or even disdain, of concurring opinions is off the mark? In this article, we argue for…
Jul 2020
Article
International Cybertorts: Expanding State Accountability in Cyberspace
Rebecca Crootof, Assistant Professor of Law, University of Richmond School of Law
States are not being held accountable for the vast majority of their harmful cyberoperations, largely because classifications created in physical space do not map well onto the cyber domain. Most injurious and invasive cyberoperations are not cybercrimes and do not constitute cyberwarfare, nor are states extending existing definitions of wrongful acts permitting countermeasures to cyberoperations…
Jul 2020
Article
The Central Claiming Renaissance
Andres Sawicki, Associate Professor, University of Miami School of Law
The Supreme Court has recently reinvigorated the law of patentable subject matter. But beneath the headlines proclaiming the return of limits to patent eligibility, a more profound shift has taken place: central claiming is reborn. The Court’s eligibility cases are significant outliers compared to today’s run-of-the-mill patent law because claim language plays little role in…
Jul 2020
Article
The Maternal Dilemma
Noya Rimalt, Professor of Law, University of Haifa.
This article questions the sufficiency of contemporary parental policies in undermining the gendered division of care-work at home. It reveals that despite the optimistic expectations that accompanied the enactment of gender-neutral leave legislation such as the FMLA, and the provision of equal care opportunities for men, a marked gap separates the law’s target of equal…
Jul 2020
Article
The Rights of Marriage: Obergefell, Din, and the Future of Constitutional Family Law
Kerry Abrams, Professor of Law, University of Virginia School of Law
In the summer of 2015 the United States Supreme Court handed down two groundbreaking constitutional family law decisions. One decision became famous overnight Obergefell v. Hodges declared that same-sex couples have the constitutional right to marry. The other, Kerry v. Din, went largely overlooked. That later case concerned not the right to marry but the…
Jul 2020
Article
Prioritizing Privacy in the Courts and Beyond
Babette Boliek, Pepperdine University School of Law
Big data has affected American life and business in a variety of ways — inspiring both technological development and industrial change. However, the legal protection for a legal person’s right to his or her own personal information has not matched the growth in the collection and aggregation of data. These legal shortcomings are exacerbated when…
Jul 2020
Article
Antitrust and the Designing of Production
Herbert Hovenkamp, James G. Dinan University Professor, University of Pennsylvania Carry Law School
Both economics and antitrust policy have traditionally distinguished “production” from “distribution.” The former is concerned with how products are designed and built, the latter with how they are placed into the hands of consumers. Nothing in the language of the antitrust laws suggests much concern with production as such. Although courts do not view it…
Jul 2020
Article
The Constitutional Law of Incarceration, Reconfigured
Margo Schlanger, Wade H. and Dores M. McCree Collegiate Professor of Law, University of Michigan.
As American incarcerated populations grew starting in the 1970s, so too did court oversight of prisons. In the late 1980s, however, as incarceration continued to boom, federal court oversight shrank. This Article addresses the most central doctrinal limit on oversight of jails and prisons, the Supreme Court’s restrictive reading of the constitutional provisions governing treatment…
Jul 2020
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